State v. Nichols

Decision Date12 June 1986
Docket NumberNo. 85-425,85-425
PartiesThe STATE of Montana, Plaintiff and Respondent, v. Dan NICHOLS, Defendant and Appellant.
CourtMontana Supreme Court

Ungar Law Office, Steven B. Ungar argued, Bozeman, for defendant and appellant.

Mike Greely, Atty. Gen., Judy Browning argued, Asst. Atty. Gen., Marc Racicot, Co. Prosecutor, Helena, for plaintiff and respondent.

HUNT, Justice.

Defendant Nichols appeals the sentence imposed by the District Court, Fifth Judicial District, after his conviction on charges of felony kidnapping and misdemeanor assault. The District Court sentenced Nichols to:

1. Ten years at the State Prison for felony kidnapping;

2. Six months at the State Prison for misdemeanor assault;

3. Ten years at the State Prison for use of a firearm while engaged in the commission of felony kidnapping (all sentences to be served consecutively).

The District Court further designated the defendant-appellant a dangerous offender for the purpose of parole eligibility pursuant to Sec. 46-18-404, MCA. In addition, the District Court strongly recommended, "that the Warden of the Montana State Prison, when and if he determines it to be a proper case therefor, transfer the defendant to the Swan River Forest Youth Camp to serve the sentence herein imposed."

Appellant presents a number of issues for our review:

1. Whether Sec. 46-18-404(1)(b), MCA, which empowers a district judge to designate a convicted defendant as a dangerous offender, if he represents a "substantial danger to other persons or society," violates the Federal or Montana Constitutions because it offends due process of law by:

(a) not requiring that the defendant receive notice that the State will seek the application of dangerous offender designation, and the factual basis of the State's request for that designation, and

(b) by containing a standard so vague as to allow arbitrary exercise of judicial power.

2. Whether the District Court abused its discretion in imposing sentence:

(a) by designating Nichols a dangerous offender;

(b) by enhancing Nichols' sentence for kidnapping because a weapon was used in the commission of the crime, because it found the exceptions to the enhancement statute did not apply;

(c) by what Nichols claims amounts to sentencing him for the crime of deliberate homicide, despite his acquittal of that offense; and

(d) by imposing a sentence which is internally inconsistent and against the weight of substantial and credible evidence?

We affirm the District Court.

This appeal arises from an ill-conceived plan of the appellant and his father to secure a woman to augment their lives as self-professed "mountain men." On July 15, 1985 they put their plan into action. The appellant Dan Nichols and his father, Don Nichols, abducted Kari Swenson as she jogged around a lake in the mountains near Big Sky, Montana. After they tied her wrist to Dan's they proceeded deeper into the mountains. After traveling for awhile they decided to make camp. Kari, still tied wrist-to-wrist to the defendant, was taken to a tree where a chain was placed around her waist and then around the tree and fastened with a padlock. Kari testified that she had trouble moving. Later they moved Kari to another location nearby that had been prepared as a sleeping area. She was taken there with one end of the chain around her waist. When they got there they chained the other end around a tree and gave her a sleeping bag. She was unable to get all the way into the sleeping bag because of the chain. She testified that she did not sleep that night.

The next morning while the father was out of the camp on an errand, Kari begged the defendant to let her go but he told her, "No, I want to keep you. You're pretty." She testified that she was crying and close to hysterics and asked him six or seven times to let her go but he refused.

The next morning Alan Goldstein, a friend of Kari's who had been looking for her, entered the camp. The appellant raised his pistol and pointed it in Goldstein's direction. Then he heard sounds behind him of Jim Schwalbe, another searcher, entering the camp. As appellant turned toward the sounds his gun discharged, seriously wounding Kari beneath her right shoulder. While Schwalbe attempted to aid Kari, Goldstein who had withdrawn from the camp, re-entered exclaiming, "You're surrounded! You might as well give up." The appellant's father said they would not give up. He moved from behind a tree, raised his rifle and from twenty feet away fatally shot Alan Goldstein. Schwalbe called Goldstein's name and ran to him. He then made his escape.

After wounding Kari, Dan Nichols did not further participate in the events until Goldstein lay dead at the scene. Then he and his father quickly prepared to break camp by packing their equipment to leave the area. Kari testified that she was getting cold but despite her pleas to keep the sleeping bag they had given her "they just kind of picked up the end and flopped" her on the ground, took the sleeping bag and left. She did not see them again until the trial.

After they had gone, Kari tried to crawl over to where Goldstein was but only made it as far as the campfire. She tried to start it by adding small sticks and blowing on it but was not successful because of difficulty breathing. She began to get sore and numb. When she tried to move there was a sucking sound from the wound in her chest. She was getting very cold and tried to crawl on her hands and knees to see if she could find something to cover herself with, but was only able to crawl on her stomach a short distance at a time. She did manage to crawl over to a backpack that Jim Schwalbe had dropped. She got into a sleeping bag that she found there. Later she again tried to crawl over to where Goldstein was but could not do so because of her weakening condition. She crawled back into the sleeping bag. She forced herself to stay awake because she feared losing consciousness would lead to her death. She was finally rescued later that day.

Appellant and his father were apprehended December 13, 1985, and charged with deliberate homicide, aggravated kidnapping, assault and intimidation. Separate trials were ordered. Appellant was tried before a jury in the Fifth Judicial District, the Honorable Frank M. Davis, presiding. During the trial, much evidence was produced concerning Donald Nichols' influence over his son Dan. Both the defense and the prosecution introduced exhaustive lay and expert testimony concerning Dan's mental state and mental health.

The verdict returned by the jury on May 13, 1985 found appellant guilty of felony kidnapping and misdemeanor assault and not guilty of deliberate homicide. On May 18, 1985 the District Court released the appellant on a $35,000 property bond. The court set a sentencing hearing for July 19, 1985. Prior to the hearing the prosecuting attorney sent the defense attorney a letter dated May 24, 1985, which served as notice of the State's intentions at sentencing.

For sentencing purposes the parties agreed to avoid additional cost by stipulating to use the psychological testimony presented at trial. In addition, they filed sentence recommendations, a presentence investigation report, and other documents. All this material was available to both sides.

During the sentencing the defense presented testimony by Dan Nichols. The State presented the testimony of Kari Swenson. This was followed by closing remarks and pronouncement by the court of the sentence described above.

Issue I: Due Process
A. Notice

Appellant first challenges Sec. 46-18-404, MCA, as containing two violations of the due process guaranties of both the United States and the Montana Constitution. First, he argues the statute fails to require that the defendant receive notice prior to the sentencing hearing that the State will seek to designate the defendant as a dangerous offender under the statute.

Section 46-18-404, MCA, provides in relevant part:

(1) The sentencing court shall designate an offender a nondangerous offender for purposes of eligibility for parole under part 2 of chapter 23 if:

(a) during the 5 years preceding the commission of the offense for which the offender is being sentenced, the offender was neither convicted of nor incarcerated for an offense committed in this state or any other jurisdiction for which a sentence to a term of imprisonment in excess of 1 year could have been imposed; and

(b) the court has determined, based on any presentence report and the evidence presented at the trial and the sentencing hearing, that the offender does not present a substantial danger to other persons in society....

(3) if the court determines that an offender is not eligible to be designated as a nondangerous offender, it shall make that determination a part of the sentence imposed and shall state the determination in the judgment. Whenever the sentence and judgment does not contain such a determination, the offender is considered to have been designated as a nondangerous offender for purposes of eligibility of parole.

The practical effect of a dangerous offender designation is to deny the defendant parole eligibility until he or she has served one-half of the sentence imposed. Section 46-23-216, MCA. Cavanaugh v. Crist (Mont.1983), 615 P.2d 890, 892, 37 St.Rep. 1461, 1463. Because of the length of the sentence imposed in this case, 20 years and 6 months, this limitation on parole eligibility also precludes appellant's transfer to Swan River Youth Camp for ten years, less "good time" credits earned.

Due process requires that a defendant's liberty interest, and risk of unjust deprivation of that liberty interest, be balanced against the State's interest in protecting the community. Greenholtz v. Nebraska Penal Inmates (1979), 442 U.S. 1, 99 S.Ct. 2100, 60 L.Ed.2d 668.

It is clear that a convicted defendant's liberty interest at sentencing does not...

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13 cases
  • Nichols v. McCormick
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • October 8, 1991
    ...to the ten-year maximum under the kidnapping statute and to the six-month maximum under the assault statute. See State v. Nichols, 222 Mont. 71, 720 P.2d 1157, 1158 (1986). The sentencing judge then invoked a separate statute, Mont.Code Ann. § 46-18-221, which reads, in relevant part, as Ad......
  • State v. Zabawa
    • United States
    • Montana Supreme Court
    • January 2, 1997
    ...sentence to sentence a defendant to less than the minimum sentence when the exceptions apply to the facts. State v. Nichols (1986), 222 Mont. 71, 82, 720 P.2d 1157, 1164. The exceptions do not apply unless the sentencing court is initially predisposed to sentence the defendant to the mandat......
  • State v. Krantz
    • United States
    • Montana Supreme Court
    • March 27, 1990
    ...statute and the dangerous offender statute. 1 The appellant faces direct injury to his liberty interest. See State v. Nichols (1986), 222 Mont. 71, 78, 720 P.2d 1157, 1162. Under the weapon enhancement statute, he faces ten years in prison in addition to thirty years for the underlying crim......
  • State v. Arlington
    • United States
    • Montana Supreme Court
    • June 9, 1994
    ...six exceptions to mandatory minimum sentences. The State cites State v. Stroud (1984), 210 Mont. 58, 683 P.2d 459, and State v. Nichols (1986), 222 Mont. 71, 720 P.2d 1157, for the proposition that when a sentencing court does not intend to sentence the defendant to the minimum sentence, th......
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